Does a data protection violation at work justify extraordinary termination without notice?

“Reading an email that is obviously addressed to another addressee and copying and passing on the email attachment (private chat history) to third parties can justify extraordinary termination without notice in individual cases, even if there is authorization to access the email account for official activities.”

The Cologne Regional Labor Court decided this in its ruling dated November 2nd, 2021 - 4 Sa 290/21.

Unauthorized access to and disclosure of your supervisor’s private emails

E-mail use at work is integrated into the everyday life of most employees and it is hard to imagine life without it. Not only business emails often end up in employees' work inboxes, but also private emails. The same was true in the dispute that the Cologne LAG had to decide.

The plaintiff had been employed by a Protestant church congregation for 23 years as a sexton and in administration, including accounting. In order to work in administration, the plaintiff was authorized to access the parish's email account. In mid-November 2019, the plaintiff finally read an email while at work that informed the pastor, her supervisor, of an investigation against him on suspicion of sexual assault on a woman living in the community's church asylum. In the email account, as an attachment to a private email, she found a chat history between the pastor and the woman concerned, which she saved on a USB stick, printed out, copied and anonymously forwarded to a community volunteer a week later . The plaintiff stated that she wanted to protect the woman living in the church asylum and secure evidence. In particular, she took the position that by passing on the files she had fulfilled her civic duty and her obligation as a community member. After the events became known, the parish terminated the employment relationship without notice. The parish justified the termination, among other things, by saying that the relationship of trust in the employment relationship had been destroyed because the plaintiff had turned to a third party. She therefore seriously violated her duty of confidentiality regarding official transactions.

The Aachen Labor Court upheld the dismissal protection claim in the first instance. Although the court saw the plaintiff's behavior as an important reason in itself for dismissal without notice, it considered this to be disproportionate due to the long and previously unburdened employment relationship and the lack of risk of recurrence. The parish appealed against this.

LAG Cologne: The existence of an important reason “in itself” and “in individual cases” must be affirmed

The appeal to the Cologne Regional Labor Court was successful. According to the finding of the 4th chamber of the LAG Cologne, there was an important reason in the sense of. § 626 Para. 1 BGB, which justifies the extraordinary termination without notice.

According to Section 626 Paragraph 1 of the German Civil Code (BGB), the employment relationship can be terminated by either party to the contract for good cause without observing a notice period if there are facts on the basis of which the person terminating, taking into account all the circumstances of the individual case and weighing up the interests of both parties to the contract, wishes to continue the employment relationship until Expiry of the notice period cannot be reasonably expected. According to the BAG's established case law, the necessary check as to whether a given circumstance in life represents an important reason in this sense must be carried out in two stages: Within the framework of Section 626 Paragraph 1 of the German Civil Code (BGB), it must first be checked whether a certain circumstance is “in itself” , i.e. is generally suitable to form a reason for termination without taking into account the special circumstances of the individual case. If such a situation exists, further examination is required as to whether the continuation of the employment relationship is reasonable or not, taking into account the specific circumstances of the individual case and weighing up the interests of both parties to the contract.

Requires presentation and proof For all circumstances that constitute an important reason, the person who issued the termination without notice is the person, usually the employer.

LAG Cologne: Passing on private data can constitute an important reason “in itself”.

According to the Cologne judges, the unlawful data processing of the employee in the employment relationship, which is accompanied by violations of the general personal rights of work colleagues, for example, can be suitable, if the violation is sufficiently serious, to constitute an important reason for dismissal, even if the data in question is not subject to the scope of protection of the law on the protection of trade secrets.

Although the plaintiff was entitled to access the church community's official email account, this access was limited to the extent necessary to fulfill the tasks under the employment contract. This results from the additional obligations under the employment contract in accordance with Section 241 of the German Civil Code (BGB) and Section 26 (1) of the BDSG.

To the extent that the plaintiff opened the emails addressed to her superior and his private email attachments, she violated her superior's general personal rights, here in the form of the right to guarantee the confidentiality and integrity of information technology systems. Simply opening and reading the private emails constitutes a breach of duty on the part of the plaintiff, regardless of whether they were specifically searched for or discovered by chance.

In addition, according to the Cologne Regional Court's ruling, printing and copying the email and its attachments represents a further significant breach of duty.

Even if the mere reading of the email with private content may not in itself be suitable to constitute an important reason - also taking into account the basic access permission to the parish's email account - the The plaintiff significantly exceeded her authorization by printing and copying. Reading emails can be done “accidentally”, but printing and copying must be done consciously.

By passing on the illegally obtained data to third parties, the plaintiff deepened the previous violation of the employment contractual obligation to protect and show consideration, violated the general personal rights of her superior and the woman living in the church asylum, and committed a further violation through unlawful data processing - namely by distributing - committed.

LAG Cologne: Relationship of trust for further cooperation irretrievably destroyed

The 4th Chamber of the Cologne Regional Labor Court viewed the relationship of trust necessary for the plaintiff's tasks as irretrievably destroyed. A warning was therefore not necessary. The balancing of interests to be carried out is to the detriment of the plaintiff. The unauthorized knowledge and, above all, (physical) passing on of third-party data is a serious violation of the duty of consideration under the employment contract, also because of the associated violation of personal rights. This was also not justified by the motives presented by the plaintiff, namely wanting to protect the woman living in the church asylum and securing evidence. Given the seriousness of the breach of duty, the municipality's interest in finding a solution clearly outweighs the plaintiff's interest in employment. Even accepting this breach of duty for the first time was unreasonable for the municipality according to objective standards and was therefore obviously - also recognizable to the plaintiff - excluded.

Practical tips: Focus on drafting the employment contract

As the judgment of the Cologne Regional Labor Court shows, it is advisable for both employers and employees to maintain a strict separation between private and work email communication, not only from a data protection perspective but also from a labor law perspective. We therefore recommend that when drafting your employment contract, you focus on the regulation of whether and how to use digital means of communication.

Melanie Maier, Specialist lawyer for labor law